A law firm in New York recently announced that its client tenant wins $2.6 million against landlords for injuries that resulted from lead paint exposure.
The verdict is in line with previous cases involving severe dysfunction caused by lead poisoning. In this case, a child ingested paint chips, chewed on a windowsill that was coated with lead-based paint, and came into contact with lead dust. The exposure occurred in two separate apartments.
Historically, states and cities attempted to hold paint manufacturers responsible for the costs associated with removing this hazard in properties once the dangers of lead paint were discovered. While initially successful, those lawsuits foundered in appeals, and the onus then fell on rental property owners to mitigate the risks of lead poisoning in their buildings.
Landlords can be liable under both federal and state statutes that require owners to reduce or mitigate the risks of lead poisoning. While any person can be adversely affected by exposure to lead paint, children often suffer the most severe reactions, which can include brain damage and profound learning disabilities. The failure to follow statutory guidelines for lead-paint removal can give rise to a claim of negligence. That means that landlords may be subject to punitive damages, which typically are not covered by insurance. In at least one case, the EPA threatened to pursue criminal charges and a jail sentence against a landlord it claimed willfully violated the rules.
Federal law requires most landlords with properties built prior to 1978, when the use of lead paint was prohibited, to:
Provide an EPA-approved disclosure to tenants warning of lead paint hazards along with a pamphlet which educates tenants on ways to reduce the risks of injury. Those forms are available in multiple languages on the EPA website. The lead warnings also should be included in the lease with clearly-marked headings. Any known hazards must be disclosed to incoming tenants.
In addition to federal rules, many states have enacted their own lead paint regulations. Often, these state rules require higher standards and therefore can be more costly for landlords. In some cases, the EPA will defer to the state’s rules, so it’s important to research the requirements in your state or to seek advice from an attorney in your area. Fines for violation of these rules can climb into the tens of thousands, even if no harm has occurred.
Landlords can choose to remove lead paint and thus reduce the regulatory requirements. This typically requires an inspection by a certified lead specialist. Check your local rules to learn about specific requirements of lead-free certifications.
What landlords cannot do is refuse to rent to families with children as a way of avoiding lead-related injuries. That policy violates the Fair Housing Act’s prohibition against discrimination, as well as state statutes regulating lead paint hazards.
Investors who are purchasing properties built prior to 1978 should take care when conducting due diligence to uncover any existing lead hazards. The risk of income loss is greater when those buildings are tenant-occupied. It’s wise to review lease agreements to determine if existing tenants have received the appropriate lead paint disclosures.
Unfortunately, lead paint is not the only environmental hazard that can give rise to landlord liability. A handful of states require radon testing, and a tenant may claim negligence against a landlord who leases a property that has unacceptably-high levels of radon.
Another area of concern for landlords is the presence of pesticides at the property. The best strategy is to avoid these injuries, and the resulting income loss, by hiring a reputable pest-control company to administer pesticides.
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The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.